Topic: Law and Civil Liberties

Con Nation

According to new data from the U.S. Department of Justice, one in 136 Americans is behind bars today, including an astounding 12 percent of all black men between the ages of 25 and 29. The United States represents 4.6 percent of the world’s population, but houses nearly 23 percent of humanity’s prison population. Certainly, part of this is likely due to politicians’ unfortunate habit of addressing every social problem with a new law, but much of it is due to our ever-more-draconian drug laws. A few more statistics to chew on from the latest edition of Drug War Facts, published by Common Sense for Drug Policy:

  • As of 2005, drug offenders accounted for 55 percent of the federal prison population. About 45 percent of them were in prison for possession, not trafficking.
  • The number of people incarcerated in federal prisons for drug crimes rose from 14,976 in 1986 to 68,360 in 1999.
  • It costs U.S. taxpayers $3 billion per year to keep drug offenders behind bars in federal prisons.
  • Drug offenders have accounted for nearly half the meteoric growth in prison populations since 1995.
  • About half the population of U.S. jails and prisons are nonviolent offenders, more than the combined populations of Wyoming and Alaska.
  • Forty percent of the more than 1,000 state prisons in the U.S. opened in just the last 25 years. The state of Texas alone has opened an average of 5.7 new prisons each year for the last 21 years. Despite this, about half of federal and state prisons operate over capacity.
  • Total U.S. inmates numbered 488,000 in 1985, 1.3 million in 2001, and number 2.2 million today.
  • According to survey data by human rights groups, one in five U.S. prison inmates has been sexually assaulted.
  • According to federal sentencing guidelines, a man would need to possess 50 times more powder cocaine (preferred by white users) than crack cocaine (preferred by black users) to earn the same prison sentence.
  • Blacks represent about 12 percent of the U.S. population, but 48 percent of the prison population. They represent just 13 percent of drug users, but 38 percent of those arrested for drug crimes, and 59 percent of those convicted.
  • When convicted of the same drug felony, blacks are about 50 percent more likely to be sentenced to prison than whites.
  • A black woman’s chances of spending some time in prison over the course of her life (5.6 percent) is about equal that of a white man (5.9 percent). For black men, the odds are nearly one in three (32.2%).
  • Before Congress passed mandatory minimums for offenses related to crack (but which didn’t apply to powder cocaine) in 1986, the average drug-related sentence for blacks was 11 percent higher than for whites. After that law, the disparity jumped to 49 percent.
  • Despite all of this, overall drug use in this country hasn’t substantially abated. According to government survey data, the percentage of people reporting illicit drug use in their lifetimes rose from 31.3 percent in 1979 to 35.8 percent in 1998. Between 1999 and 2001, the figure went from 39.7 to 41.1 (data prior to 1998 isn’t comparable to data after 1998 due to changes in methodology). The percentage of college students reporting having used marijuana in the last year went from 27.9 percent in 1993 to 33.7 percent in 2003; the number using in the past month went from 14.2 percent to 19.3 percent; and the number reporting daily use went from 1.9 percent to 4.7 percent.

    Interestingly, all of these increases have come from people over 18 years of age. Drug use among minors is significantly down. Which means that even as adult Americans are more likely to take recreational drugs than they once were (and given these figures, with little corresponding social harm), they’re doing a good job of steering their kids away from them. Nevertheless, the government continues to arrest and incarcerate drug offenders, and in fact is now expanding its reach to include not just recreational users and traffickers, but doctors and patients who use controlled drugs to treat illnesses in ways the drug warriors have determined are “outside the scope of legitimate medical practice.” One wonders what percentage of Americans will need to be in prison before our politicians find the courage to say “enough.”

    A New Berlin Wall

    On “The McLaughlin Group,” John McLaughlin asks if the United States should impose tariffs on Mexico equal to the cost of providing social services to Mexican immigrants if Mexico doesn’t stop illegal cross-border traffic. Pat Buchanan responded by emphasizing the need for U.S. border security, Eleanor Clift said it would be too costly for Mexico, and Tony Blankley said it would probably be a violation of WTO. Mort Zuckerman said the reaction to such a law in Mexico would move the country far to the left.

    It seems to me that all of these insightful pundits missed the point: McLaughlin was proposing that Mexico build a wall to keep Mexicans inside. Immigration advocates sometimes warn that a fence along the border would be “a new Berlin Wall.” But that’s a little over the top; the Berlin Wall was designed to keep East Germans in, to declare them the property of a repressive regime that couldn’t survive if it allowed people to vote with their feet. Whatever its demerits, an American fence would be intended to protect our borders and regulate who could come in.

    But McLaughlin’s proposed Mexican wall would be a new Berlin Wall. Anybody can stumble into a bad idea, but it’s disappointing that not one of McLaughlin’s four guests noticed the import of his proposal.

    Applying the Law

    Some additional thoughts on the Hudson case, which Radley wrote about earlier today …

    To quickly recap Hudson, it involves a police search of a man’s home, during which the police found contraband. The law says that before the police can break into a person’s home, they must first “knock and announce” themselves. In this case, all admit the police violated the knock-and-announce rule, but there is a dispute about how to handle this violation.

     A lot can be said about this case, but for this particular post, I think I’ll introduce (or perhaps reacquaint) readers with an axiom of our criminal law: Generally speaking, the government demands strict application of the law to the people, but lenient application of the law to itself.

    A few examples: 

    Elwyn Lehman found himself under arrest and facing deportation after living in the United States for 15 years. Lehman was a tour bus driver. A few years ago, he was driving gospel singer CeCe Winans to the White House from out-of-town for a special guided tour. The 53-year-old driver did not realize he had a handgun on board his bus until he was at the gates of the White House. He immediately told the Secret Service about his mistake and turned the pistol over to them. Lehman was sent to the downtown jail on three counts of weapons possession.

    Daniel Yirkovsky found a single 22-caliber bullet while he was remodeling his home. He placed the bullet in a box in his room and forgot about it. Months later, when police responded to a former girlfriend’s complaint that Yikovsky had kept some of her things, they discovered the bullet. Nothing else—no gun, no stolen property. Federal prosecutors charged him with being a “felon in possession of ammunition.” Yirkovsky is now serving a 15-year sentence.

    Edward Hanousek was a railroad roadmaster who was sentenced to prison under the Clean Water Act. A backhoe operator who was working for Hanousek accidently ruptured an oil pipeline while removing rocks from a section of track. Hanousek was off-duty at the time of the accident, but the backhoe operator was working under him. Thus, prosecutors charged Hanousek with “negligent failure to supervise.”

    These are just three quick examples of the strict application of the law. The rule of law is important, prosecutors say, and swift and severe punishment will deter violations. 

    But on closer inspection, we find that when the prosecutors were speaking of “the law,” they did not mean the Bill of Rights. Yes, the Fourth Amendment is law. Yes, the police violate the law when they fail to knock and announce themselves when they break into people’s homes. But, it is argued, this is not a situation for the strict application of law.  Severe punishment in this context is totally inappropriate. Justice, in these circumstances, requires leniency and non-enforcement, for some reason. 

    In the Hudson case, Justice Scalia and Justice Alito know the law was violated, but they seem keenly interested in making sure that the penalty or remedy is “proportionate” to the violation. This is the axiom at work. 

    Some people may prefer a strict application of the law, across the board. Some may prefer a lenient application of the law, across the board.  A case can be made for both. I also think a case can be made for strict application of the law as applied to the government, but a lenient application as applied to the people. But the least defensible position, it seems to me, is the one that dominates: Strict justice for the people and leniency for the government.  

    The speculation is that there is a 4-4 split on the Court in the Hudson case and that Justice Alito will tip the balance. It is a bad sign that he had no questions at all for the government lawyers who were urging a lenient response to Fourth Amendment knock-and-annonce violations.

    Submitted for your Disapproval: RFID in Government IDs

    The Department of Homeland Security’s Data Privacy and Integrity Advisory Committee will be considering a report on the use of RFID in identification documents at its meeting June 7th in San Francisco. A draft of the report has been posted with a request for comments.

    The report has already generated a little attention. This Government Computer News story overstates the tone of the report, but it’s good. 

    From the DHS Privacy Committee Web site:

    The Use of RFID for Human Identification (PDF, 15 pages – 127 KB) The DHS Emerging Applications and Technology Subcommittee of the Privacy Advisory Committee is seeking comments on this draft report. This report will be considered by the full Committee during the June 7, 2006 public Advisory Committee meeting in San Francisco, CA. 

    Please provide any comments in writing to privacycommittee [at] dhs [dot] gov, by postal mail, or by fax by 12:00 p.m. EST on May 22, 2006. All Comments will be considered on an ongoing basis.

    Hudson Reargued

    The Washington Post has a write-up of yesterday’s unusual second round of oral arguments in the Hudson v. Michigan case (see my summary of the case and its implications here, Cato’s amicus brief in the case here [pdf]). The case was almost certainly reargued because it ended in a 4-4 tie the first time around, meaning that new justice Samuel Alito is the likely tie-breaking vote. To that end, there’s reason for pessimism:

    The case may have a different outcome without retired Justice Sandra Day O’Connor. She seemed ready, when the case was first argued in January, to rule in favor of a Detroit man whose house was searched in 1998.

    Alito was confirmed to replace O’Connor before the case was resolved. The new argument was scheduled apparently to give Alito a chance to break a tie vote.

    Alito, a former appeals court judge and government lawyer, seemed more sympathetic to police. He asked tough questions of the lawyer for Booker Hudson Jr., who was convicted of cocaine possession based on evidence found in the search. Alito had no questions for government lawyers.

    According to the Post, if one were to judge by the oral arguments the first time around, the justices lined up in a neat left-right split, with Scalia, Roberts, Thomas, and Kennedy on the state’s side, and Stevens, Ginsberg, Souter, and Breyer for the defense. The Post suggests Kennedy may be hedging:

    Another justice who could be crucial to the outcome is Justice Anthony M. Kennedy, a moderate swing voter. During the January argument, Kennedy called the issue “troublesome,” but seemed most supportive of police. He also appeared conflicted Thursday.

    I’d like to think Thomas will continue his libertarian growth on the bench and find for the defense in this case. But the tone of the questioning in the second round of arguments suggests otherwise. What’s clear is that Bush’s nomination of Alito may very likely tip the outcome. O’Connor seemed ready to side with the defense:

    During the January argument, O’Connor worried aloud that police officers around the country may start bursting into homes to execute search warrants. She asked: “Is there no policy of protecting the home owner a little bit and the sanctity of the home from this immediate entry?”

    The answer, sadly, is “no.”

    In the last election, I seem to remember hearing lots of lecturing from conservatives, telling libertarians they should overlook President Bush’s big-government record and support him, if for no other reason than for the Supreme Court justices he’d appoint.

    Still waiting for that payoff….

    TechLawJournal Parses Phone Company Denials

    TechLawJournal has carefully parsed the statements issued by Verizon and BellSouth denying participation in the NSA spying program. I’ll quote TLJ liberally here, with permission.

    Regarding the BellSouth statement, TLJ notes that it took three working days and two weekend days to prepare a three paragraph response. As to the substance:

    BellSouth uses the phrases “customer calling information” and “customer calling records”. In contrast, the USA Today article uses the phrases “phone call records” and “domestic call records”. BellSouth associates the word “customer” with the word “record”. There is a difference between what USA Today wrote, and what BellSouth now denies.

    BellSouth portrays the USA Today article as asserting that BellSouth provided customer identifying information combined with the customer’s call information. In fact, the USA Today article only asserts that BellSouth turned over call information. Moreover, the USA Today article points out the difference. It states that “Customers’ names, street addresses and other personal information are not being handed over as part of NSA’s domestic program”. The article added that “But the phone numbers the NSA collects can easily be cross-checked with other databases to obtain that information.”

    Thus, the BellSouth statement denies something that USA Today did not assert, and leaves undenied that which USA Today did actually assert.

    Of course, it is another question whether BellSouth, in writing its statement, understood there to be a difference between “customer calling records” and “phone call records”, and intended its statement to constitute a non-denial.

    On Verizon’s May 16 statement:

    Verizon’s six paragraph statement is longer than BellSouth’s, but employs the same approach. It restates the assertions of USA Today, with variations, and then denies its restatements.

    Verizon uses the phrases “customers’ domestic calls”, “customer phone records”, and “customer records or call data”. Like BellSouth, it adds the word “customer”.  USA Today wrote about “phone call records”, without the word “customer”.

    Verizon does at one point deny that it provided “any call data”, but it then immediately follows this with the phrase “from those records”, which is a reference back to “customer phone records”. This leaves open the possibility that it provided “call data” that it retrieved from a database other that “customer phone records”.

    This is helpful insight from a dogged, independent reporter.  And subscription rates are not too expensive either.

    (Cross-posted from TechLiberationFront

    Identification: Whom do People Trust?

    Ask the average American where to go to get an identification card and they will tell you, of course, to go to the local Department of Motor Vehicles. Across the country, DMVs are the dominant source of identification cards, with perhaps the State Department in second because it issues passports. People who think about this carefully might realize that many corporations also issue identification cards.

    So, with governments eclipsing all other issuers, who do you suppose Americans trust to issue identity credentials? 

    Banks.

    A Ponemon Institute study, funded by Unisys, has found that banking institutions are most trusted to issue and manage identity credentials (graph, page 6).  The least trusted organizations are police and law enforcement. 

    Banks were trusted on every continent, and tax authorities were distrusted on every continent. Police authorities are distrusted deeply in the United States and Latin America, but not as much in Asia and Europe. Curiously, the postal service is trusted very highly in the United States, while registering little reaction, positive or negative, on other continents.

    To avert a national ID, “identity management” is the way to go: cards, tokens, and devices that share only the information required for transactions. Who should be issuing those things? Banks and other private entities. 

    More info and brilliant insight here.

    (Cross-posted from TechLiberationFront)